Ashton v. Buchholz

• Citation: 221 S.W.2d 496,359 Mo. 296
• Decision Date: 13 June 1949
• Docket Number: 40952
• Parties: Ed Ashton, Executor of the Estate of Anna Tennyson, Deceased, Respondent, v. George J. Buchholz, Appellant
• Court: Missouri Supreme Court

221 S.W.2d 496

359 Mo. 296

Ed Ashton, Executor of the Estate of Anna Tennyson, Deceased, Respondent, v. George J. Buchholz, Appellant

No. 40952

Supreme Court of Missouri

June 13, 1949

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

SYLLABUS

Plaintiff obtained a judgment for both actual and punitive damages on account of fraudulent representations inducing a loan to a corporation promoted by defendant. The petition and the evidence were sufficient for submission to the jury, but the case is reversed and remanded on account of instructions beyond the pleadings and the proof, and which inproperly emphasized certain testimony.

Garrett & Ruark and Walter A. Raymond for appellant.

(1) Plaintiff's petition contains only legal conclusions and wholly fails to state any cause of action on which relief might legally be granted. Langenberg v. St. Louis, 355 Mo. 634, 197 S.W.2d 621; Klaber v. Unity School of Christianity, 330 Mo. 854, 51 S.W.2d 30; Lewis W. Thompson & Co. v. Conran-Gideon S. Road Dist., 323 Mo. 953, 19 S.W.2d 1049; Weitzman v. Weitzman, 156 S.W.2d 906. (2) The trial court erred in failing to sustain defendant's motion for a directed verdict at the close of all the evidence for the reason there was no substantial evidence to sustain any of the charges of fraud alleged in plaintiff's petition. There was a complete failure of proof of the allegations of plaintiff's petition. McCaw v. O'Malley, 298 Mo. 401, 249 S.W. 41; Kelley v. Absher, 210 S.W.2d 531; Maupin v. Provident Life & Accident Ins. Co., 75 S.W.2d 593. (3) There was no proof of any positive misrepresentation, and concealment active or passive, was not pleaded hence there was a complete failure of proof. Williams v. Hall, 207 Mo.App. 432, 230 S.W. 126; Vendt v. Duenke, 210 S.W.2d 692; McCauley v. Smith, 146 S.W.2d 639; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Degonia v. St. Louis, I.M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807. (4) There is no substantial evidence plaintiff relied upon any representations of defendant or his associate, Pigg. Weik v. Williamson-Gunning Advertising Co., 109 Mo.App. 6, 84 S.W. 144; Bradford v. Wright, 145 Mo.App. 623, 123 S.W. 108; Lechner v. Peters, 329 Mo. 891, 46 S.W.2d 527; Blanke v. C.F. Blanke Tea & Coffee Co., 124 S.W.2d 568. (5) Under plaintiff's own personal testimony she was guilty of such negligence in looking after her own interests as to bar any recovery herein. Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190; McCaw v. O'Malley, 298 Mo. 401, 249 S.W. 41. (6) There was no substantial evidence and hence a failure of proof as to the alleged fraudulent representations as to Mid-Continent Mercury Producers, Inc., being "the owner of a certain large tract of land of leases and of mining equipment in the State of Arkansas." 26 C.J., p. 1215, sec. 109, n. 82; Stacey v. Robinson, 184 Mo.App. 54, 168 S.W. 261. (7) There is no substantial evidence that defendant or Pigg falsely or fraudulently represented to plaintiff they desired the $ 10,000 to employ additional men and to purchase additional equipment for development of the mines. Bondurant v. Raven Coal Co., 25 S.W.2d 566. (8) There was no substantial evidence of the alleged and submitted charge that defendant or his associate Pigg represented to plaintiff that the 10,000 shares of stock were preceded by no others. (9) Instruction 1 erroneously submitted in the alternative alleged fraudulent representations which were not sustained by any substantial evidence in the case and for such reason is prejudicially and reversibly erroneous. Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64; Martin v. Springfield City Water Co., 128 S.W.2d 647; Carlisle v. Tilghmon, 159 S.W.2d 663. (10) Instruction 1 erroneously submitted in the alternative alleged fraudulent misrepresentations as to things to be done in the future which cannot legally be made the basis of an actionable charge of fraud. Grand Lodge U.B. of F., v. Massachusetts B. & Ins. Co., 324 Mo. 938, 25 S.W.2d 783; Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275; Jeck v. O'Meara, 341 Mo. 419, 107 S.W.2d 782. (11) Instruction 1 is also erroneous in that the instruction fails to require the jury to find defendant or his representative consciously misstated the facts therein submitted. Foster v. Blanchard, 204 S.W. 892; Mackinnon v. Weber, 109 S.W.2d 692; Walsh v. Morse, 80 Mo. 568. (12) There was no substantial evidence that plaintiff relied upon Mrs. Weston and refrained from making further investigation because of her confidence in Mrs. Weston as submitted in Instruction 2. There was no evidence to sustain this submission and Instruction 2 is therefore prejudicially erroneous. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Arkla Lumber & Mfg. Co. v. Henry Quellmalz L. & Mfg. Co., 252 S.W. 961; Rose v. St. Louis Pub. Serv. Co., 205 S.W.2d 559; Shaw v. Butler, 78 S.W.2d 420; Hedrick v. Hedrick, 168 S.W.2d 69; Doll v. Fricke, 237 Mo.App. 1148, 171 S.W.2d 755. (13) Instruction 2 submitting a charge of fraud as to defendant concealing from plaintiff defendant's employment of plaintiff's friend, Mrs. Weston, broadens the pleadings and submits a charge of fraud not within the pleadings and not sustained by any substantial evidence. Benham v. McCoy, 213 S.W.2d 914; Winter v. Haan, 211 S.W.2d 544; Bourne v. Pratt & Whitney Aircraft Corp., 207 S.W.2d 533. (14) Instruction 2 is further prejudicially erroneous in singling out the testimony of Mrs. Weston, giving it undue prominence and emphasis and is an indirect method of submitting an argument to the jury concerning the effect and importance of plaintiff's friendship for Mrs. Weston. Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; Spalding v. Robertson, 206 S.W.2d 517.

Frank J. O'Leary and Charles V. Garnett for respondent.

(1) Plaintiff's second amended petition properly pleads a cause of action and is not open to attack. Taylor v. Cleveland C.C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69; Stottle v. Chicago, R.I. & P. Ry. Co., 321 Mo. 1190, 18 S.W.2d 433; Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103. (2) The trial court committed no error in overruling defendant's motion for directed verdict. The grounds for the motion were not made known to the court, and the sufficiency of the evidence is not now open to question. Mo. R.S.A., Sec. 847.122; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365; Schubert v. St. Louis Pub. Serv. Co., 206 S.W.2d 708; Rosebrough v. Montgomery Ward & Co., 215 S.W.2d 295. (3) Even if it should be conceded arguendo, that, under Supreme Court Rule 3.27, the sufficiency of the evidence should be considered by this Court, the evidence abundantly establishes a submissible cause. Fraud may be proved by circumstantial evidence. Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453. (4) The evidence of fraudulent misrepresentations is abundant. Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897. (5) Defendant's contention that there is no substantial evidence of plaintiff's reliance upon the fraudulent representations is wholly without merit. (6) There is no record support for the claim that plaintiff was guilty of negligence. (7) Proof of the fraudulent representation of the need of plaintiff's $ 10,000 to employ additional men and purchase equipment for the mine is abundant. Jeck v. O'Meara, supra; Collins v. Lindsay, 25 S.W.2d 84; Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275; Younger v. Hoge, 211 Mo. 444, 111 S.W. 20; Metropolitan Paving Co. v. Brown Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815; Jeck v. O'Meara, supra. (8) The evidence well supports the charge of representation that the 10,000 shares of common stock were to be preceded by no other, and that such representation was false. (9) Defendant made no objection to plaintiff's Instructions 1, 2 and 3, as required by the code, and the trial court cannot now be charged with error in giving them. Mo. R.S.A., Sec. 847.122; Laws 1947, p. 227; Holdman v. Thompson, Trustee, 216 S.W.2d 72; Sheets v. Iowa State Ins. Co., 226 Mo. 613, 126 S.W. 413; Harding v. Mo. Pac. Ry. Co., 232 Mo. 444, 134 S.W. 641; State ex rel. Brockman Mfg. Co. v. Miller, 241 S.W. 920; Mo. R.S.A., Sec. 847.105(a); Supreme Court Rule 3.21. (10) The instructions criticized by defendant are not erroneous. Luechtenfeld v. Marglous, 176 S.W.2d 674; Ward v. Fessler, 252 S.W. 667; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553.

OPINION

Conkling, J.

This appeal is from a judgment in an action for damages for alleged fraud and deceit. Tried to a jury plaintiff had judgment for $ 10,000 actual and $ 5,000 punitive damages. Defendant then appealed. After the appeal was lodged here the plaintiff, Anna Tennyson, died. Upon stipulation the cause was revived here in the name of her executor.

Stating the record facts most favorably to plaintiff it appears that in 1939, Mid-Continent Quicksilver Corporation (hereinafter called "Quicksilver") owned a certain cinnebar mine property of about 100 acres near Amity, Arkansas. Since 1935 "Quicksilver" had been in bankruptcy under Section 77-b. The trustee in bankruptcy was R. J. Soper. That company was heavily involved. Its $ 24,000 first mortgage was due and unpaid and its bonds in default. It had preferred and common stockholders, both preferred and common creditors with claims of over $ 100,000 and large unpaid administrative costs. Efforts at reorganization had not succeeded. On July 10, 1939 defendant, George J. Buchholz, of Kansas City, appellant (hereinafter called defendant), James F. Pigg and Joseph R Roberts, the latter two then of Little Rock, Arkansas, entered into a contract with Soper. By that contract, as prospective purchasers they obtained the right to (and did) mine cinnebar (the mineral source of mercury) from the bankrupt's mine and operate its reduction plant...